Session of 2000
HOUSE BILL No. 2850
By Committee on Local Government
2-3
9 AN ACT
concerning purchases by and contracts entered into by the di-
10 rector of purchases;
amending K.S.A. 75-3740 and repealing the ex-
11 isting section.
12
13 Be it enacted by the Legislature of the
State of Kansas:
14 Section
1. K.S.A. 75-3740 is hereby amended to read as follows:
75-
15 3740. (a) Except as provided by this
section and K.S.A. 75-3740b, and
16 amendments thereto, all contracts
and purchases made by or under the
17 supervision of the director of purchases or
any state agency for which
18 competitive bids are required shall be
awarded to the lowest responsible
19 bidder, taking into consideration
conformity with the specifications, terms
20 of delivery, and other conditions imposed
in the call for bids.
21 (b) The director
of purchases shall have power to decide as to the
22 lowest responsible bidder for all
purchases, but if:
23 (1) The dollar
amount of the bid received from the lowest responsible
24 bidder from within the state is identical
to the dollar amount of the bid
25 received from the lowest responsible bidder
from without the state, the
26 contract shall be awarded to the bidder
from within the state;
27 (2) in the case
of bids for paper products specified in K.S.A. 75-
28 3740b, and amendments thereto, the
dollar amounts of the bids received
29 from two or more lowest responsible bidders
are identical, the contract
30 shall be awarded to the bidder whose bid is
for those paper products
31 containing the highest percentage of
recyclable materials; and
32 (3) in the case
of bids for paper products specified in K.S.A. 75-
33 3740b, and amendments thereto, the
dollar amounts of the bids received
34 from two or more lowest responsible bidders
are identical, the contract
35 shall be awarded to the bidder whose bid is
for those paper products
36 containing the highest percentage of
recycled materials.
37 (c) Any or all
bids may be rejected, and a bid shall be rejected if it
38 contains any material alteration or
erasure.
39 (d) The
director of purchases may reject the bid of any bidder who
40 is in arrears on taxes due the state, who
is not properly registered to collect
41 and remit taxes due the state or who has
failed to perform satisfactorily
42 on a previous contract with the state. The
secretary of revenue is hereby
43 authorized to exchange such information
with the director of purchases
2
1 as is necessary to effectuate the
preceding sentence provisions of this
2 subsection notwithstanding any
other provision of law prohibiting disclo-
3 sure of the contents of taxpayer
records or information.
4
(e) Prior to determining the lowest responsible bidder
on contracts
5 for construction of buildings or for
major repairs or improvements to
6 buildings for state agencies, the
director of purchases shall consider:
7 (1) The
criteria and information developed by the secretary of ad-
8 ministration, with the advice of the
state building advisory commission to
9 rate contractors on the basis of
their performance under similar contracts
10 with the state, local governmental entities
and private entities, in addition
11 to other criteria and information
available, and (2);
12 (2) the
information that is required to be provided by the bidder
un-
13 der subsections (h) through (n);
and
14 (3) the
recommendations of the project architect, or, if there is no
15 project architect, the recommendations of
the secretary of administration
16 or the agency architect for the project as
provided in K.S.A. 75-1254, and
17 amendments thereto.
18 (f) In any
case where competitive bids are required and where all
19 bids are rejected, new bids shall be called
for as in the first instance,
20 unless otherwise expressly provided by
law.
21 (g) Contracts
for construction of buildings or for major repairs or
22 improvements to buildings for state
agencies shall be awarded to the low-
23 est responsible bidder that provides,
best value, taking into consideration
24 conformity with the specifications,
terms of delivery, other conditions im-
25 posed in the call for bids and the
financial responsibility, accountability,
26 past performance, operational
responsibleness, reliability, skill, capacity,
27 ability, judgment and integrity of the
bidder.
28 (h) All
bidders and subcontractors of bidders for contracts for
con-
29 struction of buildings or for major
repairs or improvements to buildings
30 for state agencies shall submit the
following information with the bid for
31 a project, or if stated on an annual
basis, in addition to any other infor-
32 mation the bidder may be required to
provide prior to the award of a
33 contract, failure to provide any
requested information shall cause the bid
34 to be considered incomplete and
disqualified.
35 (1) A
description of the bidder's experience with projects of
compar-
36 ative size, complexity and cost within
recent years, including documen-
37 tation that demonstrates the bidder's
ability to perform a substantial por-
38 tion of the project with the bidder's
own forces;
39 (2) annual
documentation of all projects in the previous three years
40 under written contract exceeding $50,000
with a government entity, on
41 which the bidder performed work,
disclosing:
42 (A) Timeliness
of the bidder's performance;
43 (B) quality of
the bidder's work;
3
1 (C) any
fines and penalties imposed and paid by the bidder with
2 respect to such projects,
including an explanation of each such fine or
3 penalty;
4 (D) a
history of the bidder of claims for extra work requiring
payment
5 above the original contract
amount, including an explanation of each such
6 instance of a claim for extra work
by the bidder with respect to such
7 projects; and
8
(E) contract defaults by the bidder with respect to such
projects, in-
9 cluding an explanation of each
such default;
10 (3) annual
documentation identifying and describing any projects
11 within the previous three years for
which the bidder was determined by
12 a government entity not to be a
responsible bidder. The reason given by
13 such government entity for such
determination and an explanation of such
14 determination;
15 (4) annual
documentation setting forth an adequate demonstration of
16 financial responsibility, which shall
include a certified financial statement
17 prepared by a certified public
accountant, to assure the bidder possesses
18 adequate financial resources,
availability of credit and the means and
19 ability to procure insurance and bonds
for the project;
20 (5) annual
documentation disclosing any suspensions or revocations
21 of any professional license of any
director, officer, owner or managerial
22 employee of the bidder, to the extent
that any work to be performed by
23 the bidder for the project is within the
field of such licensed profession;
24 (6) annual
documentation disclosing all violations of the federal oc-
25 cupational safety and health act (OSHA)
within the previous three years,
26 all notices of OSHA citations filed
against the bidder in the same three-
27 year period and a description and
explanation of remediation or other
28 steps taken regarding each such
violation or notice of violation;
29 (7) annual
documentation disclosing all violations within the previous
30 five years pertaining to unlawful
intimidation or discrimination against
31 any employee by reason of race, creed,
color, disability, sex or natural
32 origin or to violations of an employee's
civil rights or equal employment
33 opportunities;
34 (8) annual
documentation disclosing any litigation related to any pro-
35 ject in which the bidder has been
engaged within the previous five years.
36 Such documentation shall include copies
of pleadings, in which the bidder
37 has been named as a defendant or
third-party defendant in any action
38 involving a claim for personal injury or
wrongful death arising from per-
39 formance of work for any such
project;
40 (9) annual
documentation disclosing all violations within the previous
41 five years of any labor law or any other
provision of federal or state law
42 regulating or relating to labor or
employment, including, but not limited
43 to, child labor violations, failure to
pay wages, unemployment insurance
4
1 tax delinquencies or unfair labor
practices;
2
(10) annual documentation disclosing all violations of the
workers
3 compensation act of Kansas or the
workers compensation law of any other
4 state or federal jurisdiction,
including, but not limited to, the failure to
5 provide proof of workers
compensation insurance or other proof of ability
6 to meet the obligation to provide
workers compensation that is imposed
7 by any such law, and any lapses
thereof;
8
(11) annual documentation disclosing all criminal convictions
or
9 criminal indictments within the
previous five years that are related to
10 company operations, involving the bidder
or the bidder's officers, direc-
11 tors, owners or managerial
employees;
12 (12) annual
documentation disclosing all violations or pending
13 charges within the past five years
concerning violations of federal, state
14 or municipal environmental or health
laws, codes or rules and regulations;
15 (13) annual
documentation disclosing all violations or pending
16 charges within the past five years
related to violations of federal immi-
17 gration and naturalization laws;
18 (14) identify
the sources from which the bidder intends to provide
19 the necessary workers to complete the
project in a satisfactory manner;
20
(15) documentation identifying all work for the project that
the bidder
21 intends to subcontract to other firms
and identify each firm to which the
22 work will be subcontracted. All work not
identified as being subcon-
23 tracted, shall be performed by the
bidder; and
24
(16) documentation providing the same information for each
subcon-
25 tractor submitted with the bid, as is
prescribed for the bidder under sub-
26 sections (h) (1) through (h) (14), which
shall be obtained by the bidder
27 from each such subcontractor.
28 (i) All
subcontractors that are submitted by a bidder are subject
to
29 the approval of the director of
purchases. The approval of the subcon-
30 tractors, as provided in the general
conditions, shall be subject to the same
31 conditions and criteria for evaluation
of responsibility as the bidder.
32 (j) Prior to a
final determination that the apparent lowest bidder will
33 not be awarded a contract for
construction of buildings or for major re-
34 pairs or improvements to buildings for
state agencies, the director of pur-
35 chases shall provide written notice to
such bidder that such bidder may
36 not be awarded such contract. The
written notice shall set forth the rea-
37 sons for not awarding the contract to
such bidder and shall set forth a
38 time, date and place for such bidder to
appear and be heard, prior to a
39 final determination being made to not
award the contract to such bidder.
40 (k) All bids
with the names of the bidders and the amounts thereof,
41 together with all documents pertaining
to the proposed award of a con-
42 tract for construction of buildings or
for major repairs or improvements
43 to buildings for state agencies, shall
be made a part of a file or record by
5
1 the director of purchases and such
file or record shall be open to public
2 inspection at all reasonable times
for a ten-day period prior to award of
3 the contract, in addition to any
requirements under the open records act
4 applicable thereto.
5 (l) The
director of purchases shall require all bidders and each
sub-
6 contractor under the bidder as a
condition for bidding on contracts for
7 construction of buildings or for
major repairs or improvements to build-
8 ings for state agencies for which
competitive bids are required, to agree
9 in writing that such bidder or
subcontractor shall comply with the follow-
10 ing obligations:
11 (1) The bidder
and each subcontractor under the bidder shall ensure
12 that all employees on the job site have
appropriate training, including
13 safety training and that all such
employees have all applicable state,
14 county, city and other local
governmental licenses for licensed trades or
15 professions;
16 (2) the bidder
and each subcontractor under the bidder shall maintain
17 or participate in an apprentice training
program for each apprenticeable
18 trade or occupation represented in the
workforce of the bidder or sub-
19 contractor. As used in this subsection,
"apprentice training program"
20 means an apprenticeship program that is
registered through the Kansas
21 apprenticeship council and recognized by
the bureau of apprenticeship
22 training of the United States department
of labor and under which pro-
23 gram when an apprentice is employed on a
project, the apprentice must
24 be registered with the Kansas
apprenticeship council to be considered an
25 apprentice;
26 (3) the bidder
and each subcontractor under the bidder shall properly
27 classify employees and treat them as
provided by law for purposes of
28 workers compensation coverage,
unemployment taxes, social security
29 taxes and income tax withholding; no
contract employees will be allowed;
30 and
31 (4) the bidder
shall: (A) Provide, upon application for payment under
32 any such contract, a certified
employment sheet for all employees, includ-
33 ing employees of all subcontractors, for
each day on which work is per-
34 formed on the site, upon a form
acceptable to the secretary of adminis-
35 tration containing job classification,
hours of employment, wage rate and
36 supplements, employer identification
information and all other such in-
37 formation the secretary of
administration deems appropriate; and (B)
38 maintain a current record of the
information prescribed for the certified
39 employment sheet at a location
designated by the project architect, or, if
40 there is no project architect, by the
secretary of administration or the
41 agency architect for the
project.
42 (m) Any bidder
or subcontractor of the bidder who fails to comply
43 with any one of the obligations
specified in subsection (1) for any period
6
1 of time during the term of a
contract, at the discretion of the secretary of
2 administration, shall be subject
to one or more of the following penalties
3 and sanctions, in addition to any
other penalties prescribed by law:
4
(1) Cessation of work on the project until compliance is
obtained with
5 no extension of project time
requirements;
6
(2) withholding of payment due under any contract or
subcontract
7 until compliance is
obtained;
8
(3) permanent removal from any further work on the project;
and
9
(4) penalty payable to the state in the amount of 5% of the
dollar
10 value of the contract.
11 (n) In
addition to the penalties and sanctions specified in
subsection
12 (m), a general or other contractor shall
be liable equally for the violation
13 of a subcontractor of such contractor.
Any contractor or subcontractor
14 who has been determined to have violated
any of the obligations specified
15 in subsection (1) shall be barred from
performing any work on any future
16 projects for construction of buildings
or for major repairs or improve-
17 ments to buildings for state agencies
for a period thereafter of six months
18 for a first violation and for a period
thereafter of three years for a second
19 violation. Any such contractor or
subcontractor who has been determined
20 to have committed a third such violation
shall be barred permanently
21 from performing any work on any such
future projects.
22 (o) The
provisions of paragraph (2) of subsection (l) shall not
apply
23 to rebids of projects for which the
state received fewer than two bids in
24 response to the original request for
bids.
25 (d)
(p) Before the awarding of any contract for
construction of a
26 building or the making of repairs or
improvements upon any building for
27 a state agency, the director of purchases
shall receive written approval
28 from the state agency for which the
building construction project has been
29 approved, that the bids generally conform
with the plans and specifica-
30 tions prepared by the project architect, by
the secretary of administration
31 or by the agency architect for the project,
as the case may be, so as to
32 avoid error and mistake on the part of the
contractors. In all cases where
33 material described in a contract can be
obtained from any state institution,
34 the director of purchases shall exclude the
same from the contract.
35 (e)
(q) All bids with the names of the bidders and the
amounts
36 thereof, together with all documents
pertaining to the award of a contract,
37 shall be made a part of a file or record
and retained by the director of
38 purchases for five years, unless reproduced
as provided in K.S.A. 75-3737,
39 and amendments thereto, and shall be open
to public inspection at all
40 reasonable times.
41 (f)
(r) As used in this section and in K.S.A. 75-3741, and
amendments
42 thereto, "project architect" shall have the
meaning ascribed thereto in
43 K.S.A. 75-1251, and amendments
thereto.
7
1 Sec. 2. K.S.A. 75-3740 is
hereby repealed.
2 Sec. 3. This act
shall take effect and be in force from and after its
3 publication in the statute book.